Ditch the Ninth Circuit? What Trump gets right (and wrong)

President Donald Trump has set the liberal Ninth Circuit Court of Appeals in his sights.

“Absolutely I have considered” proposals to break up the Ninth Circuit, President Trump said last week. Opponents of his policies have engaged in “judge shopping” to find friendly courts to enjoin, he claimed, most recently his executive orders punishing sanctuary cities and restricting immigration from Muslim nations.

“Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that’s like, semi-automatic,” Trump told the Washington Examiner.

Trump is not the first Republican to seek to divide the court, which hears appeals from federal trial courts in California, Alaska, Oregon, Montana, Idaho, Arizona, and Hawaii. It is the largest federal appeals court in the nation, not just by geography and population, but by caseload and number of judges. It has a liberal super-majority, with Democratic presidents appointing 18 out of the current 25 sitting judges – some of whom date back to the Carter years. It has pushed constitutional law in liberal directions, such as striking down California’s ban on gay marriage, and generous readings of statutes in favor of environmental, labor, and consumer groups. It has a reputation for a high rate of reversal by the Supreme Court, a fact noted by President Trump: “It’s got close to an 80 percent reversal period, and what’s going on in the 9th Circuit is a shame.”

Republicans in conservative states surrounding California, which the majority of the liberal judges call home, would like a divorce. They have proposed legislation that would carve out a new court that would leave behind California, Oregon, and Hawaii – all states that supported Hillary Clinton and have two Democratic Senators.

As Republicans, we understand conservative frustration with the Ninth Circuit, and we too often disagree with its decisions. But we also often scratch our heads over the decisions of other courts, including misguided opinions on racial affirmative action in universities (the Fifth Circuit in Texas) and Obamacare’s takeover of the health care market (the D.C. Circuit in Washington and the Sixth Circuit in Ohio). Conservatives should pause before monkeying around with the court to change the political outcome of cases.

First, splitting the Court would waste valuable political resources at a time when the Republicans could achieve greater legal results elsewhere. Only Congress, not the President, has the constitutional authority to create and organize the lower federal courts. Senate Democrats would most likely filibuster any effort to split the Ninth Circuit, which would require at least 60 votes to enact the legislation. Instead of seeking to remake the geography of the courts, the White House should devote its efforts to nominating capable conservatives to the four vacancies on the Ninth Circuit and to the many others on the other circuits. If Congress wants to dilute the liberal direction of the Ninth Circuit, it could instead create 10 new judgeships, which would only follow the precedent set by Democrats who vastly increased the court’s size at the end of the Carter presidency

Second, conservatives should instinctively resist the urge to manipulate the courts to win political battles. Let Democrats be the ones who resort to this tactic. Upon winning the Presidency and Congress in 1800, the Jeffersonians eliminated dozens of judgeships and attempted to impeach a Federalist Supreme Court Justice. Progressives of the early 20th Century campaigned against judicial review, while FDR famously attempted to pack the Supreme Court with six new members to overturn its decisions blocking the New Deal. Liberals will more often than conservatives confront the courts as an obstacle to their latest efforts at social engineering. While conservatives will suffer at the hand of the courts from time to time too – as they have most notably on affirmative action, abortion, and gay marriage – they should defend institutions that moderate unrestrained democracy and slow down social change.

Third, arguments that the Ninth Circuit has grown too large for a single court are overblown. Quality control should be the primary concern for the court, for which reversal by the Supreme Court is a good proxy. The Supreme Court, which has the luxury of choosing which cases to hear, has granted review in only a tiny fraction of the Ninth Circuit’s cases (well below 1 percent). From 2010-15, the Supreme Court reversed in 79 percent of the cases it granted from the Ninth Circuit; while above average, this came in for only third place among the 13 circuits. While the Ninth Circuit handles the largest number of cases in the country, it has adopted a management system that summarily disposes of simple cases and reserves the difficult one for judicial decisions. It has created an en banc system (which brings together half of the overall court) to efficiently resolve conflicts between the three-judge panels that initially decide most cases. The alternative is to either divide California between two different circuits, which has never happened before and would lead to severe contradictions in the laws governing commerce, or lead to a heavily imbalanced set of circuits anyway.

Our judicial system should have a diversity of appellate courts as our nation has a diversity of states: the important D.C. Circuit sits only over the nation’s capital with a tiny, but important caseload of cases against the government, while the Second Circuit has only New York, Connecticut, and Vermont. Our judicial system can learn from the innovations of the Ninth Circuit in handling a vast stretch of land and population.

None of the proposals to split the Ninth Circuit would attack the root problem for the Trump administration. It is moving aggressively to implement an agenda that raises difficulties under constitutional doctrine. Courts will always act as a brake – for good or ill – on rapid policy changes. No matter what new, interesting shapes for the courts arise in the minds of Congress, opponents of the conservative agenda can always bring suit in California, New York, or Illinois to find a sympathetic court.

Instead, Republicans should look for the real solution in Trump’s greatest triumph so far – the appointment of Neil Gorsuch to the Supreme Court. The problem is not the liberalness of the Ninth Circuit or any other circuit, but taking advantage of the President’s authority to nominate, and the Senate’s right to confirm, judges to restore balance to the federal judiciary after eight years of Obama appointments. Instead of playing cartographer, the White House should devote its energies to swiftly nominating more men and women to the federal courts in the mold of Gorsuch or of the Justice whom he replaced, Antonin Scalia, and the Senate should speedily confirm them.

John Yoo is Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law and a visiting scholar at the American Enterprise Institute. He served in President George W. Bush’s Justice Department.